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Privacy and Freedom of the Press: Case C-73/07

The Court of Justice has handed down a stack of interesting judgments lately. We can't write them all up today so be patient.

Here's one which deals with a conflict between data protection (privacy) and the freedom of the press. The judgment in Case C-73/07 Tietosujvaltuutettu v Satakunnan Markkinopörssi Oy and Others held that the publication of data from documents already in the public domain may be characterized as "journaisltic activities" if its object is the disclosure to the public of information, opinions or ideas and thus not protected from disclosure by Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data.

The story goes like this. The Finnish company, Markkinapörssi, collected public data from the Finnish tax authorities so as to publish it in the Veropörrsi newspaper each year. The information collected comprises the surname and given name of roughly 1.2 million persons whose income exceeds certain thresholds as well as the amount, to the nearest €100, of their income and details of the wealth tax levied on them. Markkinopörssi and Satamedia, an associated company to which the data at issue were transferred in the form of CD-ROM discs, signed an agreement with a mobile phone company which put in place, on Satamedia’s behalf, a text-messaging service allowing mobile phone users to receive information published in the Veropörrsi newspaper on their telephone
for a charge of approximately €2. On request, the personal data are removed from that service.

People complained about that and alleged an infringement of their right to privacy. The Data Protection Ombudsman applied for an order prohibiting Markkinapörssi and Satamedia from carrying on the personal data processing activities at issue. They challenged that order before the Finnish courts and the Supreme Administrative Court referred a number of questions to the Court of Justice on the interpretation of Directive 95/46/EC and to ask in particular whether the operations involved are data processing undertaken solely for journalistic purposes and thus subject to exceptions and limitations relating to data protection.

The Court of Justice held, first, that the data involved, comprising the surname and given name of certain natural persons whose income exceeds certain thresholds as well as the amount, to the nearest €100, of their earned and unearned income, constitute personal data within the meaning of Article 2(a) of Directive 95/46/EC, since they constitute ‘information relating to an identified or identifiable natural person’ (see also Joined Cases C‑465/00, C‑138/01 and C‑139/01 Österreichischer Rundfunk and Others, paragraph 64).

The Court then held that the publication of such data in the circumstances of this case could be considered to be "solely for journalistic purposes" within the meaning of Article 9 of Directive 95/46/EC. The Court recalled that the provisions of a directive must be interpreted in the light of the aims pursued by the directive and the system it establishes (see, Case C-265/07 Caffaro, paragraph 14).

The Court then stated that while Directive 95/46/EC had the objective of protecting the fundamental right to privacy, that objective cannot be pursued without having regard to the fact that those fundamental rights must, to some degree, be reconciled with the fundamental right to freedom of expression. Recital 37 in the preamble to the directive makes clear that the object of Article 9 is to reconcile those two fundamental rights: the protection of privacy and freedom of expression. It is the member States which are required to reconcile the two. To do so, the Member States are required to provide for a number of derogations or limitations in relation to the protection of data and, therefore, in relation to the fundamental right to privacy, specified in Chapters II, IV and VI of the directive. Those derogations must be made solely for journalistic purposes or the purpose of artistic or literary expression, which fall within the scope of the fundamental right to freedom of expression, in so far as it is apparent that they are necessary in order to reconcile the right to privacy with the rules governing freedom of expression.

The Court continued that in order to take account of the importance of the right to freedom of expression in every democratic society, it is necessary, first, to interpret notions relating to that freedom, such as journalism, broadly. Secondly, and in order to achieve a balance between the two fundamental rights, the protection of the fundamental right to privacy requires that the derogations and limitations in relation to the protection of data provided for in the chapters of the directive referred to above must apply only in so far as is strictly necessary.

It held that activities such as those involved in the main proceedings, relating to data from documents which are in the public domain under national legislation, may be classified as ‘journalistic activities’ if their object is the disclosure to the public of information, opinions or ideas, irrespective of the medium which is used to transmit them. They are not limited to media undertakings and may be undertaken for profit-making purposes.